Gavin Howe
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law originated in England during the Middle Ages and spread to North America during the colonial period of the 17th and 18th centuries. Today, common law is practiced in several countries, including the US, Canada, India, and Australia, and the UK. Unlike civil law, common law is flexible and can respond to changes in society as it does not require lawmakers to pass changes in statutes and codes. Instead, higher courts can overrule prior decisions as bad law without waiting for lawmakers to act. This makes common law a dynamic system that can adapt to societal changes and establish consistent outcomes by applying the same standards of interpretation.
| Characteristics | Values |
|---|---|
| Basis of common law | Court decisions, not codes or statutes |
| Common law, also known as | Judicial precedent, judge-made law, or case law |
| Common law is deeply rooted in | Stare decisis ("to stand by things decided") |
| Common law is based on | Precedent—judicial rulings made in previous similar cases |
| Common law draws from | Institutionalized opinions and interpretations from judicial authorities and public juries |
| Common law is | A body of unwritten laws |
| Common law vs civil law | In civil law, judicial decisions are not binding in other cases with similar facts |
| Common law promotes | Stability and consistency |
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What You'll Learn
Common law's roots in England and its spread
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It originated in England during the Middle Ages, in the centuries following the Norman Conquest of 1066. The Anglo-Saxons, especially after the accession of Alfred the Great in 871, had a system of rules resembling those used by the Germanic peoples of northern Europe. Local customs governed most matters, while the church played a large part in government, and crimes were treated as wrongs for which compensation was made to the victim.
The Norman Conquest did not immediately end Anglo-Saxon law, but the period of colonial rule that followed brought about significant changes. The Normans spoke French and had developed a customary law in Normandy, which had no professional lawyers or judges. Instead, literate clergymen acted as administrators, and some of these clergymen were familiar with Roman law and the canon law of the Christian church. This canon law was applied in the English church courts, but Roman law was less influential in England than elsewhere.
During the reign of Henry II (1154–1189), royal officials roamed the country, inquiring about the administration of justice. The church and state had separate law and court systems, which led to centuries of rivalry over jurisdiction. The doctrine of precedent developed during the 12th and 13th centuries, as the collective judicial decisions were based on tradition, custom, and precedent. The form of reasoning used in common law is known as casuistry or case-based reasoning.
Common law spread to North America during the 17th and 18th centuries and continues to be practised in the United States, Canada, India, Australia, Hong Kong, New Zealand, and the United Kingdom. Outside of the US, parties in different jurisdictions often choose the law of England and Wales, particularly if they are in former British colonies or Commonwealth countries. This is because commercial parties seek predictability and simplicity in their contractual relations and frequently choose a common law jurisdiction with a well-developed body of common law.
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Common law vs civil law
Common law and civil law are the two main types of legal systems in the world. Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It originated in medieval England and is practised today in several countries, including the US, Canada, India, and Australia. Common law is less prescriptive than civil law, and generally permits everything that is not expressly prohibited.
Civil law, on the other hand, is a comprehensive, codified set of legal statutes created by legislators. It is rooted in the Roman Empire and was disseminated in the 19th century through codes such as France's Napoleonic Code and Germany's Bürgerliches Gesetzbuch. Civil law is generally more prescriptive than common law and is practised in about 150 countries today, making it the world's most common legal system.
One key difference between the two systems is their approach to precedent. Common law systems place great weight on precedent, recognising prior court decisions as legally binding. In contrast, civil law judges tend to give less weight to judicial precedent and rely primarily on codes and statutes. Civil law systems have clear rules for how judges need to rule for specific disputes, whereas common law systems rely on case-based reasoning and the evaluation of similar situations and statutes.
Another difference lies in the importance of setting out the terms of a contract. In a common law system, it is crucial to outline all the terms governing the relationship between the parties in the contract itself, as there are few implied provisions. In contrast, civil law systems imply various provisions into a contract, and ambiguities can be resolved by operation of law, often resulting in shorter contracts.
In summary, common law and civil law systems differ in their reliance on precedent, their level of prescriptiveness, and their approach to contract terms and implied provisions. While common law is based on unwritten laws and judicial precedent, civil law is centred around a comprehensive code of statutes that clearly outlines procedures and punishments.
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Common law in modern legal systems
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This means that judges need to follow previous rulings and precedents when dealing with similar cases. Common law is primarily developed through judicial decisions rather than statutes.
Common law originated in England during the Middle Ages, with its roots stretching even further. It was further developed during the Norman Conquest of 1066 and the reign of Henry II (1154-1189). During this time, there was a rivalry between the church and state, each with its own law and court systems. The Normans had no professional lawyers or judges, so literate clergymen acted as administrators, drawing on their knowledge of Roman law and canon law.
Today, several countries continue to rely heavily on common law, including the United States, Canada, India, Australia, and New Zealand. Common law is often chosen for its depth and predictability, especially in commercial contracts and disputes. For example, despite having no direct connection to New York, parties from Japan, France, Germany, and other U.S. states may choose to apply New York common law in their contracts.
Common law coexists with another major legal system, civil law, which originated in mainland Europe. Civil law is a comprehensive, codified set of legal statutes that outline procedures, claims handling, and punishments for offences. Unlike common law, civil law systems rely on codes and statutes, and judicial decisions are not binding in future cases with similar facts.
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Common law and statutes
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It is primarily developed through judicial decisions rather than statutes. Common law draws from institutionalized opinions and interpretations from judicial authorities and public juries. It originated in England during the Middle Ages and has since spread to many other countries, including the US, Canada, India, and Australia.
Common law is deeply rooted in the principle of stare decisis, which means "to stand by things decided". This principle ensures that courts and judges follow previous rulings and precedents when dealing with similar cases. The doctrine of precedent developed during the 12th and 13th centuries and is a key aspect of common law systems.
Statutes, on the other hand, are generally understood to supersede common law. They are written laws created by legislators that may codify, change, or overrule common law. Civil law systems, prevalent in mainland Europe, are primarily based on comprehensive codes of statutes that outline procedures and punishments. In contrast, common law systems rely on case law and precedents, promoting stability and consistency in legal outcomes.
Despite the development of statutes, common law still has practical applications, especially in areas like contract law and the law of torts. Commercial parties often choose the law of jurisdictions with well-developed common law, such as New York or England and Wales, to ensure predictability and simplicity in their contractual relations. This highlights the continued relevance of common law in modern legal systems.
In summary, common law and statutes represent two different approaches to law-making. While statutes are written codes created by legislators, common law is a body of unwritten laws based on judicial precedents. Both have their advantages, and they often interact and influence each other in legal systems around the world.
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Common law in commercial contracts
Common law, also known as case law or judge-made law, is a body of unwritten laws based on legal precedents established by the courts. It is primarily developed through judicial decisions rather than statutes, with judges relying on previous rulings and case law to guide their decisions. This principle is known as stare decisis, which means "to stand by things decided". Common law promotes stability and consistency in the legal system.
In the United States, common law is one of the primary sources governing commercial contracts, alongside statutory law and the Uniform Commercial Code (UCC). Common law dictates that any change to an offer is considered a rejection and counter-offer, whereas the UCC allows for more flexibility in contract formation. Common law requires a detailed description of the quantity, price, performance time, nature of work, and identity of an offer for a valid contract, while the UCC only specifies that quantity is a must-have term. Common law also requires consideration for the modification of contracts, which is not a prerequisite for the UCC.
Common law governs contracts for services, real estate transactions, insurance, intangible assets, and employment. On the other hand, the UCC governs contracts involving the sale of goods and tangible objects, such as a car purchase. Common law contracts can be bilateral or unilateral. To be enforceable, a common-law contract must include elements such as offer, acceptance, and consideration, forming mutual assent. The acceptance must be a mirror image of the offer to constitute valid acceptance.
The choice of law in commercial contracts is important, and parties often choose the law of a jurisdiction with a well-developed body of common law to ensure predictability and simplicity in their contractual relations. For example, contracts involving international parties may choose the law of England and Wales, particularly if they are from former British colonies or Commonwealth countries. New York common law is also frequently chosen due to its depth and predictability.
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Frequently asked questions
Common law is a body of law based on legal precedents established by the courts. It is derived from judicial decisions instead of statutes.
Common law develops through stare decisis, a Latin phrase that means "to stand by things decided". This means that judges need to follow earlier decisions and rulings, or case law, when dealing with similar cases.
Common law is used in several countries today, including the U.S., Canada, India, and Australia. It is often used in contract law and the law of torts.
